Citation Nr: 0843937
Decision Date: 12/19/08 Archive Date: 12/23/08
DOCKET NO. 95-18 498 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUES
1. Entitlement to service connection for Epstein-Barr virus
infection.
2. Entitlement to service connection for the residuals of
exposure to ionizing radiation including a disorder manifest
by general health problems, a genetic disorder, birth
defects, and degeneration of the bones.
(The issues of entitlement to an effective date earlier than
November 13, 1992 for service connection for a psychiatric
disorder to include post-traumatic stress disorder and
entitlement to an initial compensable evaluation for service
connected basal cell carcinoma of the left eyebrow, left
medial canthus and frontalium of the nose will be the
subjects of a separate Board decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Amy R. Grasman, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1959 to
January 1963.
This appeal comes before the Board of Veterans' Appeals
(Board) from an August 1997 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Salt Lake City, Utah, which denied service connection for
residuals of and fatigue secondary to radiation exposure, and
from a September 1997 rating decision which denied service
connection for general health problems, birth defects, a
genetic disorder, Epstein-Barr virus, and degeneration of the
bones and spine.
In April 1998, the veteran testified in a hearing in front of
the undersigned Veterans Law Judge in Washington, D.C. The
transcript of the hearing is associated with the claims file
and has been reviewed.
The Board originally considered this case in June 1998 and
denied the veteran's claims. The veteran was denied
reconsideration of the Board decision in August 1998, and
appealed the June 1998 Board decision to the United States
Court of Appeals for Veterans Claims (Court). In March 2001,
the Court vacated the Board's decision and remanded all
issues to the Board for adjudication on the merits with
consideration of the newly enacted Veterans Claims Assistance
Act of 2000.
In May 2002, the Board issued a decision denying the
veteran's claims. The veteran was denied reconsideration of
the Board decision in September 2002, and appealed the May
2002 Board decision to the Court. In March 2003, the Court
granted a Joint Motion for Remand and vacated the Board's
decision. The Court remanded all issues to the Board for
further compliance with the VCAA. In February 2004, the
Board remanded the case to the RO for additional development.
Following further development, the RO issued a Supplemental
Statement of the Case in November 2006 and this case was
returned to the Board for appellate review.
The Board also received additional evidence from the veteran
in April 2008 consisting of records from the Social Security
Administration (SSA). The evidence was accompanied by a
waiver of the veteran's right to initial consideration of the
new evidence by the RO. 38 C.F.R. §§ 19.9, 20.1304(c)
(2007). The Board notes, however, that the SSA records were
previously submitted to the RO in November 1997.
FINDINGS OF FACT
1. The veteran has been notified of the evidence necessary to
substantiate his claim, and all relevant evidence necessary
for an equitable disposition of this appeal has been
obtained.
2. The competent medical evidence does not show a current
diagnosis of Epstein-Barr virus.
3. The veteran has not been diagnosed with a radiogenic
disease as defined in § 3.309(d)(2) or 3.311(b)(2).
4. Degeneration of the bones, or arthritis, did not manifest
in service or to a compensable degree within one year after
the veteran's separation from service and is not related to
service.
5. Disability compensation benefits for birth defects of a
veteran's children and/or grandchildren are not available
under VA law.
CONCLUSIONS OF LAW
1. Epstein-Barr virus was not incurred in or aggravated by
active duty service. 38 U.S.C.A. § 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2007).
2. A disorder manifest by general health problems was not
incurred in or aggravated by active duty service, nor was it
caused by exposure to ionizing radiation during service. 38
U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2007).
3. A degenerative bone disorder, including arthritis, was not
incurred in or aggravated by active duty service, may not be
presumed to have been incurred in service and was not caused
by exposure to ionizing radiation during service. 38
U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2007).
4. A genetic disorder was not incurred in or aggravated by
active duty service, nor was it caused by exposure to
ionizing radiation during service. 38 U.S.C.A. §§ 1110,
1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.303, 3.307, 3.309, 3.311 (2007).
5. The veteran has failed to state a claim upon which relief
can be granted for the birth defects of his children and
grandchildren. 38 U.S.C.A. § 101, 1110, 1131 (West 2002 &
Supp. 2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide. 38 C.F.R.
§ 3.159(b)(1).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims (Court) held, in part,
that a VCAA notice, as required by 38 U.S.C.A. § 5103(a),
must be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits. In the present case, the unfavorable AOJ
decision that is the basis of this appeal was already decided
and appealed prior to the enactment of the current section
5103(a) requirements in 2000. The Court acknowledged in
Pelegrini that where, as here, the § 5103(a) notice was not
mandated at the time of the initial AOJ decision, the AOJ did
not err in not providing such notice. Rather, the appellant
has the right to a content complying notice and proper
subsequent VA process. Pelegrini, 18 Vet. App. at 120.
In this case, the VCAA duty to notify was satisfied
subsequent to the initial AOJ decision by way of letters sent
to the appellant in March 2004, April 2004 and July 2007 that
fully addressed all notice elements. The letter informed the
appellant of what evidence was required to substantiate the
claims and of the appellant's and VA's respective duties for
obtaining evidence. The appellant was also asked to submit
evidence and/or information in his possession to the AOJ.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
In this case, the July 2007 letter addressed the rating
criteria and effective date provisions that are pertinent to
the appellant's claims. Any error regarding this notice was
harmless given that service connection is being denied, and
hence no rating or effective date will be assigned with
respect to the claimed conditions.
VA also has a duty to assist the veteran in the development
of the claim. This duty includes assisting the veteran in
the procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained service medical
records, DD Form 214, private medical records and VA medical
records. The veteran was provided an opportunity to set
forth his contentions during the hearing before the
undersigned Veterans Law Judge. The appellant was afforded a
VA medical examination in October 2007. The Board further
finds that the RO complied with its February 2004 Remand.
Stegall v. West, 11 Vet. App. 268 (1998). Significantly,
neither the appellant nor his representative has identified,
and the record does not otherwise indicate, any additional
existing evidence that is necessary for a fair adjudication
of the claim that has not been obtained. Hence, no further
notice or assistance to the appellant is required to fulfill
VA's duty to assist the appellant in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may
be shown by affirmative evidence showing inception or
aggravation during service or through statutory presumptions.
Id.
To establish direct service connection for a claimed
disorder, there must be (1) medical evidence of current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service occurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. See 38 C.F.R. § 3.303(b).
If chronicity in service is not established, a showing of
continuity of symptoms after discharge is required to support
the claim. Id.
Where a veteran served 90 days or more during a period of war
or during peacetime service after December 31, 1946, and a
chronic disease such as arthritis manifests to a degree of 10
percent within one year from date of termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A. § 1101,
1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
EPSTEIN-BARR VIRUS
The veteran originally asserted that he contracted Epstein-
Barr virus as a result of his active duty service. The
service medical records are void of a diagnosis in service.
Treatment records dated in May 1996, including clinical test
results, reveal no detectable antibodies of Epstein-Barr
virus to suggest past or current infection. Since that time,
the veteran has reported that he does not have Epstein-Barr
virus, but believes that any false positive test may have
been a result of his exposure to ionizing radiation during
service. In the April 1998 hearing, the veteran testified
that there was a misdiagnosis because Epstein-Barr and
radiation or chemical exposure can show the same titers.
Consequently, the symptoms the veteran originally claimed as
being a result of Epstein-Barr virus, he now attributes to
radiation exposure and are addressed within his claim for
entitlement to service connection for a disorder manifest by
general health problems.
Based on the foregoing, the Board finds that the veteran does
not have Epstein-Barr virus and, as such, service connection
cannot be granted as no disability exists. See 38 C.F.R.
§ 3.303. Therefore, service connection for Epstein-Barr
virus is denied.
RESIDUALS OF EXPOSURE TO IONIZING RADIATION INCLUDING GENERAL
HEALTH PROBLEMS AND DEGENERATION OF THE BONES
Certain types of cancer are presumptively service connected
specific to radiation-exposed veterans. 38 U.S.C.A.
§ 1112(c); 38 C.F.R. § 3.309(d). In this case, the veteran
has not been diagnosed with cancer of any kind. Therefore,
he is not entitled to presumed service connection under
38 C.F.R. § 3.309(d)(2).
Additionally, "radiogenic diseases" may be service
connected pursuant to 38 C.F.R. § 3.311. Service connection
may also be granted under 38 C.F.R. § 3.303(d) when it is
established that the disease diagnosed after discharge is the
result of exposure to ionizing radiation during active
service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
A "radiation-exposed veteran" is defined by 38 C.F.R.
§ 3.309(d)(3) as a veteran who, while serving on active duty,
active duty for training, or inactive duty training,
participated in a radiation-risk activity. "Radiation-risk
activity" is defined to mean on site participation in a test
involving the atmospheric detonation of a nuclear device; the
occupation of Hiroshima, Japan or Nagasaki, Japan by United
States forces during the period beginning on August 6, 1945,
and ending on July 1, 1946; or internment as a prisoner of
war in Japan (or service on active duty in Japan immediately
following such internment) during World War II which resulted
in an opportunity for exposure to ionizing radiation
comparable to that of the United States occupational forces
in Hiroshima or Nagasaki during the period from August 6,
1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii).
Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is
defined as a disease that may be induced by ionizing
radiation, and specifically includes the following: all forms
of leukemia, except chronic lymphocytic leukemia; thyroid
cancer, breast cancer, lung cancer, bone cancer, liver
cancer, skin cancer, esophageal cancer, stomach cancer, colon
cancer, pancreatic cancer, kidney cancer, urinary bladder
cancer, salivary gland cancer, multiple myeloma, posterior
subcapsular cataracts, non-malignant thyroid nodular disease,
ovarian cancer, parathyroid adenoma, tumors of the brain and
central nervous system, cancer of the rectum, lymphomas other
than Hodgkin's disease, prostate cancer, and any other
cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv).
Notwithstanding the above, the United States Court of Appeals
for the Federal Circuit has held that when a veteran is found
not to be entitled to a regulatory presumption of service
connection for a given disability, the claim must
nevertheless be reviewed to determine whether service
connection can be established on a direct basis. See Combee,
34 F.3d at 1043-1044. Thus, the Board must not only
determine whether the veteran has a disability which is
recognized by VA as being etiologically related to exposure
to ionizing radiation, but must also determine whether his
disability is otherwise the result of active service. In
other words, the fact that the veteran may not meet the
requirements of a presumptive regulation would not in and of
itself preclude him from establishing service connection as
he may, in the alternative, establish service connection by
way of proof of actual direct causation.
In this case, service personnel records show that the veteran
participated in atmospheric nuclear testing at Johnston
Island in 1962, in an operation named DOMINIC I. The Board
concedes that the veteran was exposed to radiation in
service. A December 2006 letter from the Defense Threat
Reduction Agency shows that the total skin dose the veteran
could have received to any skin area during participation in
the U.S. atmosphere nuclear testing is not more than 550 rem
.
Service medical records do not show any treatment for a
disorder manifest by general health problems, a genetic
disorder, or degeneration of the bones. The veteran asserts
that his disabilities began many years following his active
duty service, but are a direct result of his exposure to
ionizing radiation during service.
Treatment records dated in the 1970's and 1990's reveal that
the veteran has had various complaints of general health
problems, including fatigue, and that he was diagnosed as
having spondylosis of the cervical spine in 1995 as well as
degenerative joint disease. A progress note dated in May
1996, shows that the veteran was concerned about potential
radiation exposure as he had been feeling weak and tired with
pain in his back. It was noted at that time that the veteran
had experienced numbness in his fingers and had two children
with birth defects, one with retinoblastoma and the other
with limb developmental problems. The examination of the
veteran was unremarkable except for the notation that he had
no hair on his legs. The examiner disqualified himself as an
expert in the field of nuclear radiation, but rendered an
assessment of possible nuclear exposure given the unusual
syndrome and history presented by the veteran.
In April 1998, the veteran appeared and testified before the
Board that he had general health problems and degeneration of
the bones that he believed to be the result of his
participation in the DOMINIC I nuclear testing. He also
stated that he believed he acquired a genetic disorder as a
result of the testing which caused his children conceived and
born after his active duty service to have birth defects
because his child born prior to service did not have any
birth defects. The veteran testified that although no
physician had ever diagnosed an illness as being a result of
radiation exposure, he was told by VA over the telephone that
there was no way to tell the difference between degenerative
joint disease caused by injury and degenerative joint disease
caused by radiation exposure. The veteran further testified
that he complained of flu-like symptoms after exposure while
he was still in the service, that he began having back pain
in 1968, that subsequent to service he did not tell any
physician about his radiation exposure until the operation
was declassified, and that he now believed his health
problems were a result of exposure to Strontium 90 and/or
Plutonium. The veteran also asserted that his health
problems were the result of a blast injury in service.
In spite of the veteran's assertions, the Board finds that
service connection cannot be granted for a disorder manifest
by general health problems or for degeneration of the bones
as a result of exposure to ionizing radiation.
First, none of the claimed disabilities is a radiogenic
disease within the meaning of 38 C.F.R. § 3.311(b)(2).
Second, the medical evidence of record does not show that the
veteran's claimed disabilities are related to service,
including radiation exposure in service. In March 2004, the
veteran had a General Medical Examination to determine
residuals from nuclear radiation exposure. The only
residuals from radiation exposure that the examiner found
were basal cell and squamous cell carcinoma, for which the
veteran is already service-connected, and lack of hair on the
veteran's legs and arms.
The records contained a June 2007 letter from a VA physician.
The physician reviewed the entire radiology film file,
including x-rays from 1992 to 1997. There were degenerative
changes in the veteran's lumbar and cervical spine. The
examiner found that none of the exams demonstrate any
specific finding to indicate a traumatic or post irradiation
cause for the degenerative changes. All of the findings in
the studies were compatible with age related degenerative
changes with were commonly see in patients who are the
veteran's age. The physician found that he certainly could
not exclude the possibility that earlier traumatic events may
have contributed to the generative process and there was no
radiographic evidence to support that possibility.
In an October 2007 VA Compensation and Pension Examination,
the claims file was reviewed and the veteran was examined.
The examiner reviewed the service medical records, noted an
injury in service as well as radiation exposure. The
examiner also considered the veteran's past medical history,
treatment records, x-rays and MRIs. The examiner diagnosed
the veteran with degenerative disc disease of the cervical
and lumbar spine. Based on the lack of treatment for joint
complaints in service and the lack of medical records showing
joint complaints, the examiner found that in spite of the
subjective complaints of the veteran, there was no evidence
to support a diagnosis for the veteran's painful joints,
other than the veteran's spine. The examiner noted that
there was no continuity of medical records to support the
veteran's assertions. The examiner opined that the veteran's
joint complaints were less likely than not caused by or a
result of the blast injury in service or radiation exposure
in service.
After a thorough review of the claims file, there is no
medical evidence of record relating the veteran's
disabilities to service, or radiation exposure in service.
The competent medical evidence does not relate the
disabilities to service. Without competent medical evidence
linking a disability to service, service connection is not
warranted.
Lastly, presumptive service connection under 38 C.F.R.
§ 3.307 for arthritis has also been considered. Because the
veteran asserts that he began having back pain in 1968, and
he was diagnosed as having degenerative joint disease in the
1990's, the Board finds that service connection cannot be
granted on a presumptive basis as the claimed disability was
not manifest to a compensable degree within one year of the
veteran's separation from service in 1963.
The Board has considered the veteran's contention that a
relationship exists between his general health and bone
disabilities and service. However, as a layman, without the
appropriate medical training and expertise, he is not
competent to provide a probative opinion on a medical matter
such as etiology. While a layman such as the veteran can
certainly attest to his in service experiences and current
symptoms, he is not competent to provide an opinion linking a
disability to service. See Bostain v. West, 11 Vet. App.
124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App.
492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge").
In sum, the evidence of record does not show that the
veteran's general health problems or degeneration of his
bones were caused by an event or injury in service, including
a blast injury or radiation exposure. As the preponderance
of the evidence is against the veteran's claim, the benefit-
of-the-doubt rule does not apply, and the veteran's claim for
service connection must be denied. See 38 U.S.C.A §5107;
38 C.F.R. § 3.102.
Genetic Disorder and Birth Defects
The veteran asserts that exposure to radiation caused a
genetic disorder that led to birth defects in his children
and grandchildren. The veteran seeks VA disability
compensation benefits for the birth defects of his children
and grandchildren.
For the purposes of Title 38 of the United States Code, the
term, "veteran" means a person who served in the active
military, naval, or air service, and who was discharged or
released therefrom under conditions other than dishonorable.
See 38 U.S.C.A. § 101(2). Basic entitlement to VA disability
compensation benefits is predicated on the finding of the
individual suffering personal injury or disease contracted in
the line of duty or for aggravation of a pre-existing injury
or disease being a "veteran." See 38 U.S.C.A. §§ 1110, 1131.
There is no provision within VA law for the award of
disability compensation benefits for the children and/or
grandchildren of a veteran based on injury allegedly suffered
during active duty service. The only monetary award within
VA law for the children of a male veteran is an award of a
monetary allowance for the children of Vietnam veterans who
have a disability resulting from spina bifida. See 38
U.S.C.A. § 1805.
Based on the evidence as outlined above, the Board finds that
the veteran has failed to state a claim upon which relief may
be granted as there is no provision within VA law that would
allow the veteran's children and/or grandchildren to be
awarded disability compensation benefits based on a veteran's
exposure to ionizing radiation in service. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994). The veteran is not
asserting that he is the individual with the disability of a
birth defect nor is he asserting that his children and/or
grandchildren are veterans within the meaning of VA law.
Thus, the veteran's claim for service connection for birth
defects of his children and grandchildren must be and hereby
is denied.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for Epstein-Barr virus is denied.
Service connection for a disorder manifest by general health
problems, a genetic disorder, birth defects, and degeneration
of the bones as a result of exposure to ionizing radiation is
denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs